A simple chief rule is that anyone who needs to assert something in order to win the legal proceedings is also the person who is to prove the fact that applies. If one of the parties has had a particular reason to ensure proof of a certain fact then the burden of proof often ends up with him or her. The difficulties involved in a certain party producing evidence concerning a certain fact can also be decisive. It can, for example, be mentioned that a person who requires payment for goods supplied or for a loan is to prove that he or she has a claim against the opposite party. If the opposite party pleads that the amount has already been paid then it is he or she who has the burden of proof that the payment has been made. In cases of liability for damages it is normally the injured party that has the burden of proof. It can be the case that the burden of proof for a certain fact can be turned around in certain evidence conditions. If, therefore, in a case of discrimination, the person raising the action can demonstrate circumstances that give rise to assume that he or she has been subjected to discrimination, it is the defendant that is to show that no discrimination has occurred.
If the evidence referred to is not sufficient, this means that the court cannot use the actual circumstance as a basis for it decision. If it is a case of estimating the value of damage that has occurred there is an important exception that means that the court may, if it is not possible or very difficult to produce evidence as to the amount of damage, estimate the value of the damage at a reasonable amount.
Allegations accepted by the opposite party do not need to be proved. The court can use such uncontested allegations as the basis of its decision without further notice. In certain types of cases, e.g. cases concerning care, housing or visiting rights, other rules apply, however, that mean that the court carries out an independent examination of what has been proved even if the party has accepted a fact referred to against him or her. The reason for this is that the court has, in these cases, a special responsibility for the case having a factually correct outcome.
Facts that are generally known need not be proved. Nor do the parties need to produce evidence as to what is contained in Swedish law. If foreign law is to be applied, the court may, however, request that the parties produce evidence of what the foreign law prescribes.
The requirements that are laid down for the weight of evidence depend on what type of case is concerned. In civil cases the normal requirement is that the fact in question is to be confirmed. It could be said that the judge has to be convinced. In certain civil cases – and for certain circumstances - a lower evidence requirement may apply. An example that can be mentioned is cases of consumer insurances where it is considered sufficient that it appears more probable that the event insured against has occurred than that it has not.
The principle rule is that it is the parties themselves who are responsible for the evidence. In certain cases there is a possibility of the court introducing evidence to the case without this being requested by either party. It can therefore be the case, particularly in cases of custody or visiting rights, that the court considers that the investigation needs to be supplemented with further evidence, e.g. through a custody investigation from the local authority’s social services. In civil cases where the parties can reach a binding agreement on the matter, so-called cases amenable to settlement, the court is entitled, of its own initiative, to hear a witness who has not previously been heard or decide that certain written evidence is to be produced during the legal proceedings.
If a party at the court refers to oral evidence, e.g. examination of a witness or questioning of a party under oath, the court summons the person to be heard to the proceedings where the questioning is to take place. Written evidence is given by the parties themselves, often in connection with the summons application or the defendant’s plea. If a main hearing is held, the evidence must be presented at this. This means that written evidence must in principle be read aloud at the hearing and the witness should provide his account in the presence of the court.
The court can reject the evidence if what the party wishes to prove is of no significance to the case. This also applies if evidence is not required or if the evidence would obviously have no effect. In addition, there are rules that mean that written testimony may be referred to only in special exceptional circumstances.
In Sweden there are, in principle, five different basic forms of evidence (means of evidence). These are
A witness is, as a general rule, to be heard orally and in the presence of the court. Written witness testimonies must not be referred to. With the approval of the court, the witness may however use notes as a support for their memory. In the case of evidence from an expert the principal rule is instead that the expert is to give a written statement. If it is requested by one of the parties, and it is does not obviously lack significance, the expert is also to be heard orally during the proceedings. An oral hearing is also to take part if it is essential that he or she is heard directly in the presence of the court.
If the case is to be determined after a main hearing – e.g. in order for the witness to be heard – written evidence and expert statements must in principle be read aloud at the hearing in order for the court to be able to take account of the material in its judgement. There is however the possibility of the court deciding that written evidence is considered to have been heard at the main hearing without this needing to be read aloud at the hearing.
I Sweden, the principle of the admissibility of evidence applies. This means that there are no rules that specify the weight of evidence that different evidence has. The court decides instead, after an independent assessment of everything that has occurred, what is considered to have been proved in the case. Generally, however, written testimony - which can be referred to as evidence in special cases – is considered to have a lower value as evidence than the questioning of a witness that takes place at the hearing.
The principle of admissibility of evidence means that that there are no rules that specify that certain circumstances require certain types of evidence in order to be confirmed. Instead the court carries out an overall assessment of the circumstances of the case in its examination of what has been proved (see 5 c).
In Sweden a general duty to testify applies. This means that a person called as a witness is bound to testify except in special circumstances.
Spouses are not obliged to testify in cases where the other spouse is a party. Nor can any close relatives or other persons who are related to any of the parties be forced to testify against their will. In addition to this, a witness may refuse to comment on a certain fact if a statement would mean that the witness was thereby forced to reveal that he or she had committed a criminal or dishonourable act. Nor does a witness need to reveal professional secrets unless there are exceptional reasons.
A person who is to be heard as a witness is summoned to the proceedings under penalty of a fine. If the witness does not appear, the fine is imposed if he or she does not have a valid excuse for his or her non-appearance, e.g. illness. If the witness does not turn up, the court can also decide that the witness is to be fetched to court by the police. Ultimately the court has the option of taking into custody a person who refuses to testify without a valid reason for refusing to reply to questions.
For clergymen, solicitors, doctors and psychologists there are restrictions to the possibilities of testifying about information that has been obtained under the duty of confidentiality. If the person called as a witness is under 15 years of age, or suffers from a mental disturbance, the court will examine whether he or she may be heard as a witness, taking into account the circumstances.
The questioning of witnesses is normally begun by the person who called the witness. Thereafter, the opposite party has the opportunity to conduct a cross-examination. After the cross-examination, the person who called the witness and the court may ask supplementary questions. The court is to reject questions that obviously have nothing to do with the case or which are confusing or inappropriate in some other fashion.
The questioning of a witness can take place by telephone if this is suitable taking into account the costs that would be involved if the witness instead appears in the courtroom and the importance of the witness being heard personally at the hearing. Under a pilot scheme at certain courts, a witness may even be heard under the same conditions in a videoconference.
The principle of admissibility of evidence means that there are only certain rare exceptions where it is forbidden to use certain types of evidence. That evidence has been acquired in an unlawful manner does not therefore, in principle, prevent the proof being referred to during the trial. This can, however, be of significance in the weighing of evidence.
The parties must not testify. They can, however, be heard for the purposes of proof. In some cases, a hearing takes place under oath. In such a case, the party has a criminal liability for the correctness of the information that he or she provides.Top
Last update: 09-05-2005